If the FCC wins before the Supreme Court this term, a split-second of profanity could put student broadcasters in peril
Kalyn Feigenbaum was sitting in the DJ’s chair at Pennsylvania State University’s WKPS radio when it happened. Through the driving bass line and shattering cymbal crashes, she heard it come over the airwaves as though it was a hand slapping her in the face.
“Oh, God,” she thought. “I hope nobody caught that.”
On that darkening November evening during her radio show, The Indy 500, a caller asked to hear a song by punk band the Dead Kennedys. In a rush to please her listening faithful, Feigenbaum spun the disk, forgetting to screen it first.
“A swear word got dropped. I can’t remember which one, but I knew I shouldn’t have played it,” Feigenbaum said. “We have a button to fix that sort of stuff, but I don’t know if it worked.”
It was only Feigenbaum’s second time behind the microphone and already she thought she had gotten herself fired, or worse, fined by the Federal Communications Commission. WKPS has a strict policy, Feigenbaum said: No swearing, at all, ever. Minutes passed as she waited for the fallout, her eyes repeatedly fixing themselves to the studio’s telephone, sitting mercifully quiet.
The call never came. Feigenbaum did not receive a complaint about the song, and her bosses did not raise the issue either. Her story, a common one in student broadcasting, is a sobering reminder to any student in front of a camera or microphone to not only watch what they say, but what others are saying.
Since 1976 the FCC has policed the airwaves for indecent speech, such as swear words, issuing fines to stations that violated its regulations. These fines can be cripplingly steep to a low-budget, student-run station. And now, the U.S. Supreme Court will hear a case that could allow those restrictions to tighten.
On Nov. 6, the Supreme Court will hear oral arguments in the case FCC v. Fox Television Stations. The case centers on fleeting expletives, one-time utterances of words that may be indecent according to FCC regulations but were not penalized by the commission ‘ until recently.
The case will be the first major review of the FCC’s indecency policy since the landmark 1978 decision in the case FCC v. Pacifica Foundation. In the case, which involved the late comedian George Carlin’s comedy skit “Filthy Words,” the Supreme Court affirmed the FCC’s right to regulate speech on the airwaves.
Although the FCC issued a policy statement in April 2001 to give broadcasters a better idea of what language it considered to be indecent, the commission has not issued a list of words it considers to be explicitly indecent or obscene.
According to managers of student radio stations, honest, one-time mistakes, like cursing while on-air or playing a song that contains a swear word, are all too common in student radio.
“It happens all the time,” said Sarah Colombo, general manager at the University of Georgia’s WUOG Radio in Athens. “We try to stop it but these are students, many of them aren’t even broadcast majors. Slips happen.”
The current Supreme Court court case originates from the 2002 and 2003 Billboard Music Awards ceremonies where expletives were said during the programs.
The most infamous case, however, happened during the 2003 Golden Globe Awards where singer Bono of the rock band U2, upon receiving the award for Best Original Song, said, “This is really, really fucking brilliant.”
Complaints poured into the FCC after Bono’s remarks, largely facilitated by activist organizations such as Parents Television Council. But despite the uproar, the FCC ruled in October 2003 that it would not fine the broadcast.
“We have previously found that fleeting and isolated remarks of this nature do not warrant Commission action,” the agency ruled.
So, it seemed, the FCC believed one-time use of the F-word was excusable. Not quite.
Just five months later, the FCC did an about-face, saying that not only are fleeting expletives subject to indecency fines, but that any use of the F-word, “in any context,” is indecent and would constitute a violation of FCC policy.
“It is problematic how radically the FCC’s policy has changed in the last 5 to 6 years,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression.
Several television stations asked the 2nd U.S. Circuit Court of Appeals in November 2006 to review the FCC’s policy change, claiming the commission did not have an adequate reason for changing its policy so abruptly. In supporting the television stations, the court ruled that the change went against nearly 30 years of precedent set by the commission.
One of the toughest issues facing student broadcasters is that, at the moment, it is not clear what the FCC will consider indecent and what it will not.
Shades of gray
“The uncertainty they’ve created is bad,” O’Neil said. “Everything is in utter confusion.”
In March 2004, television station KCSM-TV, a PBS affiliate owned by the San Mateo County Community College in Calif., broadcast the Martin Scorsese documentary The Blues: Godfathers and Sons. The film’s dialogue includes several F-words and S-words. KCSM-TV subsequently was fined $15,000 for airing indecent speech. However, in a move that has confused broadcasters and legal experts alike, in February 2005 the commission ruled that it would not fine ABC Television for its presentation of the film Saving Private Ryan, in which several of the same words are said.
“Broadcasters want a clearer understanding of where the line of permissible broadcast lies. It’s a difficult line to find, for broadcasters and the government,” said Richard Wiley, former FCC chairman. “Hopefully the Supreme Court decision will provide some guidance.”
Current FCC commissioner Deborah Taylor Tate, in a speech at the First Amendment Center in June, defended the commission’s regulation of indecent speech, saying it protects children from words that may prove to be harmful to mental health.
Tate said the commission’s approach is a “balance [of] First Amendment rights with the protection of our most valuable resource, our children.”
In June the Parents Television Council filed a friend-of-the-court brief with the Supreme Court supporting the FCC’s policy. On its Web site, the PTC argued the 2nd Circuit’s decision, which said the FCC had no right to radically change its policy, “ran contrary to nearly 80 years of jurisprudence about the publicly-owned airwaves.”
“The simple solution here is that broadcasters could and should adopt a zero-tolerance policy towards indecency, just as they promised they would during a Congressional tribunal after the Janet Jackson incident,” PTC President Tim Winter wrote in a press release.
“Janet Jackson” refers to the 2004 Super Bowl halftime performance where the singer’s breast was revealed during what was coined a “wardrobe malfunction.”
In July, the 3rd U.S. Circuit Court of Appeals, in a three-judge panel, threw out the $550,000 indecency fine the FCC levied against CBS for the halftime show. In its ruling, the court said the FCC “acted arbitrarily and capriciously” when it issued the fine for such a fleeting image.
According to court documents, Jackson’s breast was exposed to the 90 million people watching for nine-sixteenths of one second, enough time for it to fall under a fleeting image category. The court said the FCC fine was issued without proper notice that the commission had changed its fleeting images and expletives policy.
“Like any agency, the FCC may change its policies without judicial second-guessing,” the court opinion said. “But it cannot change a well-established course of action without supplying notice of a reasoned explanation for its policy departure.”
Radio stations may be able to protect themselves from fines for knowingly airing repeated swear words, said Leslie Kolovich, general manager of 30A, a small radio station in Seaside, Fla., but stopping one-time mistakes are much harder.
“That’s what worries me,” Kolovich said. “Everyone could have a slip-up.”
30A is licensed to the Seaside Neighborhood School, a middle school in a small beachfront community. Kolovich said the FCC’s policy might force her to be more careful about whom she allows behind the microphone.
“Students get to come in and learn about broadcasting and radio. They even get to go on air with a little supervision,” Kolovich said. “It’s a great learning experience for them, and teaches them things they can’t learn any place else.”
Over the last seven years, indecency complaints have skyrocketed. In 2001 the FCC received 346 indecency complaints stemming from 152 different programs. Last year, according to Tate, there were more than 150,000 indecency complaints filed with the FCC.
David Black, general manager and adviser to WSUM, the University of Wisconsin’s student radio station, said the message to student broadcasters is that their work is not like “playing in a sandbox.” People are listening.
With the recent spike in complaints and millions of dollars in fines issued, student stations have a reason to be wary of the FCC’s indecency policy.
“A fine would kill us. Absolutely kill us,” Black said. WSUM started as a school project in 1993 and assumed its current form in 2002. Black boasted that WSUM is one of the largest student radio stations in the country.
“It’s hard to decide in 20 seconds whether or not something is indecent,” Black said. “Can someone speak metaphorically? What if it’s just once? You have such little time to decide whether to hit the dump button.”
Within the radio industry, a “dump button” is commonly understood as a mechanism that will delete a small portion of a broadcast, usually only a few seconds, before it is broadcast.
But for this to work a station needs to run on a time delay, be equipped with the proper machinery and have skilled technicians running the on-air booth.
Kristen Mattern, KZSC station manager and a senior at the University of California at Santa Cruz, said even with the delay system at KZSC, there are no guarantees that the station could monitor every word said.
“It’s just really hard and would be horrible if we had to closely monitor everything. Especially when someone calls in,” she said.
Kolovich echoed Black’s concern that despite the best efforts of many student broadcasters, one slip or obnoxious caller could mean the end of a valuable learning experience.
“We’re just a small volunteer station. A first offense would kill us,” Kolovich said. “We’re totally supported by the community. Every dollar keeps us on the air.”
Student radio and TV stations are offered no additional protection from fines than are commercial stations. In 2005, those fines became much harsher. The Broadcast Decency Enforcement Act of 2005 raised the amount the FCC may fine a station for an indecent broadcast ten-fold, to $325,000 for every indecent word.
Although Wiley said the FCC does take a station’s budget into account when issuing fines, college stations are not exempt from large penalties. In 1993, WSUC, the student radio station of SUNY Cortland, was fined $23,750 for airing a rap song the FCC ruled was indecent.
The line between indecent and non-indecent speech lies at the core of the controversy for student broadcasters. Conflicting rulings from the commission and several legal challenges have muddied an already unclear area of broadcasting law.
Glen Robinson, a former FCC commissioner, said the current FCC is “definitely overstepping the boundaries” in choosing to regulate speech that was never previously considered indecent.
For some cash-strapped student broadcasts, a $23,000 fine, or even $2,300, could drive them to bankruptcy. But, according to Black and others, if a student station were to violate FCC policy, a hefty fine would be the least of its worries.
In most cases, student broadcast stations are licensed to a university’s board of trustees or board of regents. Many universities have adopted the policy of allowing their student-run stations to manage themselves.
However, Black said if a station were to get fined by the FCC, the university would likely change its laissez-faire policy.
“The best news that can happen to a station like ours is no news,” Black said. “If we’re on their radar screen, they can be more draconian than the FCC would ever be about what we do.”
This fear of insurmountable fines and university censorship has led to a culture of self-censorship, Black said.
Lili Levi, a professor at the University of Miami School of Law, said the increase in indecency fines, in conjunction with the FCC’s unclear guidance as to what it considers indecent speech, has led even commercial television stations to err on the side of caution.
She pointed to the Saving Private Ryan case as an example. Although the FCC eventually concluded the film did not contain indecent speech, Levi said dozens of stations at the time refused to carry the broadcast out of fear of an FCC penalty.
Feigenbaum, of Penn State’s WKPS, said if college broadcasters thought they would get fined for every mistake, or if the university began meddling in content restrictions, no student would take the time to become a DJ.
“Half the kids I know would quit. They would be sitting in their chair shaking the whole time and wouldn’t ever learn anything,” Feigenbaum said.
Also at stake are student broadcasts’ coverage of live sporting and music events. Under the current FCC policy, a station is responsible for all of the content it sends out, even if it doesn’t have control over it.
Malcolm Moran, professor of sports journalism at Penn State, said it is nearly impossible to control everything that fans and on-lookers say at big sporting events.“If you’re in a stadium with 100,000 people, how are you going to control everyone?” Moran asked. “Or let’s say a student is working at a basketball game. The play-by-play announcers are right on the floor next to the coaches. What if the coaches start cursing? What are you going to do, shut the announcer’s mic off?”
Even when college television and radio stations have time-delay systems, indecent images or words slip by and make it onto the airwaves.
“How can you prevent something if you don’t know that it’s there?” Black said. “I’ve heard of a case where during a loud rock performance, you can hear the F-word said very softly in the background of this loud rock concert. How are we supposed to catch things like that?”
Colombo, of the University of Georgia’s WUOG, said she has had similar troubles.
“We want to keep providing live broadcasts of music events. We have a segment called Live in the Lobby where we have local bands come in and play,” Colombo said. “Sometimes, the musicians make a mistake and curse. We tell them not to before they begin, but it happens.”
Moran said students studying to be broadcasters would be missing a valuable learning experience if they were forced to stop coverage of all live broadcasts because of a change in FCC policy.
“Stopping live broadcasts will absolutely hurt students,” Moran said. “There were things that I learned doing play-by-play that helped me as a newspaper reporter that I never would have figured out had I not done live play-by-play.”
Fall 2008, reports